Bullwinkle, the Internet, and Foreclosures

For my money Bullwinkle is one of the top five cartoons of all time. Bullwinkle_the_mooseSubversive is a pretty apt description of the show in those way-way-way back pre-cable days. One of Bullwinkle Moose’s favorite expressions: “If it’s in the newspaper, it must be true,”(though to do it justice you really have to hear him say it).

It was satirical then and it’s satirical now, when newspapers are online. “If it’s on the Internet, it must be true,” would be Bullwinkle’s new catchphrase. Most people would laugh, shake their heads and agree – even the ones who repost photos of Obama and the aliens from Roswell drinking beer on Facebook.

If it's in the ...
If it’s in the …

But that doesn’t stop anyone from finding and believing exactly what they wanted to find and believe . . . and sharing. This seems to particularly apply to legal matters. Let’s face it, there have been some insane court decisions over the past few hundred years of our common law, there’s bound to be one floating around out there for virtually any ‘no hope’ scenario.

There have been a few real outliers when it comes to foreclosures – homeowners who through a long series of tortuous litigation(is that redundant?) end up with a ‘free house’. In the time it took to get the free house there were probably thousands of modifications, negotiated short sales, all manner of not-so-horrible outcomes for other homeowners . . . yet the once-in-a-lifetime, all the planets perfectly aligned, outcome hits the Internet with all the subtlety of a Floyd Mayweather news conference.

This is the bane of my lawyerly existence. Unlike Bullwinkle’s newspapers, news of

‘A Resounding Victory for Homeowners’

doesn’t stay in the Business section – it spreads like wildfire and the more it spreads the more the magic of SEO kicks in and the higher it pops up in searches and the more . . .

Well, you know how it goes. It ends with homeowners under threat of foreclosure searching the net for help and having to scroll through dozens and dozens of ‘I got my home for free‘, ‘I got my client a house for free‘, ‘you can get your house for free‘, articles, blog posts, outright solicitations, before they get to the real world of foreclosure defense.

Not great for realistic expectations. It makes my job harder… though it can be even worse, as we’ll discuss in the next blog post.

Expectations, Part 2 (or so)

200px-Bleakhouse_serial_coverI  had a professor in law school who proclaimed loud and clear at least once a week that ‘your goal as lawyers should be to never be in a casebook,’ he would usually say it while brandishing said casebook.

He wasn’t referring to world shattering decisions like Brown v. Board of Education, he meant the contract cases that could have been settled amicably, tort cases where even a modicum of common sense would have kept them in the lower courts, property cases that mindlessly escalated . . .

Continue reading Expectations, Part 2 (or so)

Last Week in Foreclosure Defense . . . or Read Your Mail.

Regardless of the relationship, regardless of the status of the relationship – love, hate, divorce, reconciliation, estrangement, cold shoulder, head-over-heels infatuation, Robert Durst I’m-going-to-end-this-badly enmity – if you share money; buy a car, house, condo with someone; cosign a loan . . . do whatever’s necessary to stay in the paperwork loop.

My client didn’t, he allowed his wife to handle all the money, bills, payments, etc. – which is why his foreclosure got to the Law Day before he knew his home was in foreclosure.

Monday’s arguements probably went as well as I could have hoped for:

Flow Charts, Decision Trees, Venn Diagrams, and Foreclosure Defense

decision-model-diagramI know someone who zipped through law school finals (usually the one and only grade for a class, so, hey, no pressure) by creating flow charts. Elaborate charts that, if used properly, would lead to a well organized, rational, factually-based answer. The trick for him – and anyone using it in lieu of an outline – was to properly identify the issue. Miss the issue and the flow chart was useless. Hit the issue, sit back and fill in the blanks.

Most options are, of course, at the beginning. Start with the basic issue(s) and it begins to narrow down, and down, and down to the logical end point – a logical, legally supportable result.

I thought of this last week when I was giving a short talk at the Connecticut Bar Association about foreclosure defense. I was talking about the process – always the process – and it aways came back to options. As in, what options are available to the client at what point in the process.

Like my friend’s flow charts, the options are very much front-loaded. The issue is not in doubt, but the way to a good result for the client is certainly not a straight line.

After I fielded a few questions it became pretty clear, pretty quickly, that my colleagues and I are seeing clients at the mid- to late stages of the process . . . the place where – under the flow chart scenario – the options narrow.

This is disturbing because this isn’t a legal exercise, it’s peoples’ lives. It’s their homes. It’s even more disturbing if the reason for this is because people who are going through foreclosure don’t think they have options . . . and by the time they realize they do, those options have been significantly reduced.

Either way, foreclosure defendants have a textbook worth of options at the start of the process, and need to take advantage – otherwise the flow chart looks like this:





“They’re More Like Guidelines . . .”

I continue to get foreclosure clients at various stages of the ‘process’. Very rarely, these days, do I start with someone who just got served or, best case scenario, someone who knows they are about to go into foreclosure and wants to plan their response.

There are a lot of reasons for this, every one of which I understand. And will probably write about in the near future.

The ramifications of this trend have really hit home over the past month or so. Recently, I spent a morning in court for a “short-calendar” day – that’s a day devoted exclusively to motions concerned with various stages of foreclosure actions. There were a little over one hundred items on the docket. One hundred decisions that a judge had to make.

Besides myself, the judge, clerk, and marshal, there were eight other people in the room. For One hundred motions. Two plaintiff attorneys representing the banks (yes, they had every case) and six defendants there to speak up.

There are two sides to every argument, but only if two sides show up. On that day, out of one hundred plus motions, the judge heard seven arguments. Ninety-three plus motions were decided by default judgement.

Connecticut state courts are jammed with foreclosure cases. It’s a sad fact and it’s not going to change anytime soon.  When overwhelmed by work, it’s basic human nature to shortcut the workpile – especially the tedious.

Any fan of Pirates of the Caribbean can tell you what happens next:

The code becomes more like guidelines instead of rules‘. I can do a lot of good at any stage of the process, and I do – but when I come in after the rules becomes guidelines stage I come in with less ammunition that I would have earlier in the process.


Expectations are funny things – personal, largely unspoken, the basis for relationships while probably one the main reasons relationships fail.

In any relationship the longer expectations are left unspoken, the more divergent they become until you get the situation below:

Foreclosure defense is rife with expectations, few of them grounded in what actually occurs during the court process.

A few years ago it was widely reported that up to 90% of people foreclosed on failed to show up at court. Period. The majority of them no doubt expected that after missing mortgage payments, everything from there on out was inevitable – a quick look around the Internet easily reinforced that – so why add the stress of spending a day in court?

Now, many people going into foreclosure are angry – at themselves, their banks, mortgage brokers, investors that bought securitized mortgage instruments, Congress, Wall Street, and on and on – a quick look around the Internet easily reinforces this.

My job with both these categories – and all the ones in between, they tend to create some very interesting Venn Diagrams (more on that later) – is managing their expectations . . .  no, that’s wrong, my job is to set their expectations.

Simply: we are not going to court to roll up in a ball and acquiesce to everything the bank’s lawyers toss at us; conversely, we are not going to court to right the wrongs of the Recession, undo securitized loans, return the financial world to the way it was in the good old days before . . .

I am going to court to get a fair and equitable deal for you and take some stress out of your life.

That’s it, anything else adds to the stress levels for all of us and can lead to perilous situations – and none of us have Bond’s ability to escape time after time.